Mediators, like judges, encounter ethical issues when dealing with a pro se party facing a represented party. If they try to compensate for parties without counsel, they run the risk of compromising their impartiality. If the judge or mediator treats the pro se party like any party with counsel, she may deny the pro se litigant a fair trial or a fair opportunity to negotiate their case.
Consider, for example, an employment dispute in mediation. In joint caucus, the pro se complainant, a member of a protected class, explains that he worked for a trucking company for five years and was abruptly fired with no explanation while other employees kept their jobs. Employer’s counsel then launches into a 10-minute recitation of the facts and pertinent case law. She rebuts the plaintiff’s case point by point to demonstrate how she will prevail in court. The mediator recesses for the first separate caucus with the complainant. Totally deflated, the complainant says that he failed to understand much of what the employer’s counsel said and has no idea what he is seeking in damages.
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